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The Flabbiest of Rights?

Okay, failing to exercise your constitutional rights won’t make them flabby. In truth, something far worse could happen: you could end up behind bars. But if your rights could get flabby, it’s your right to remain silent that would surely be among the flabbiest of those basic foundations of American democracy.

The right to remain silent is enshrined in U.S. Constitution’s Fifth Amendment. The actual wording of the amendment does not speak of silence. Rather, the Fifth Amendment guarantees that no American can be required to incriminate himself or herself. Yet, as any lawyer practicing criminal law can tell you, scads of Americans incriminate themselves everyday. It’s not that baton wielding police officers are beating confessions out of everyone who spills the beans on the themselves. In a run-of-the-mill drunk driving case, the arresting officer’s interrogation methods usually amount to simply asking the accused driver if he’d had a drink or two before sliding into the driver’s seat. The officer will usually ask that question shortly after making his initial contact with the soon to be arrested driver. Sometimes the question will come before the driver hears his Miranda rights; sometimes it will come afterwards.

No matter when it comes, though, the typical driver who has, in fact, consumed alcohol before driving will admit to having had a drink or a beer or two or a glass of wine. At that point, it’s a safe bet that an arrest will soon follow. The arrest may occur even when the driver is not intoxicated or feeling any effects of the beer he had two hours ago. At that point, an experienced lawyer can mean the difference between merely having an unpleasant experience or actually ending up convicted of a crime.

Often, the driver who admits he’d had a drink thinks he is helping himself by answering the officer’s question. However, that is rarely, if ever, true. Far from helping himself, the driver has only really helped the police officer make an arrest. Had that driver exercised his Fifth Amendment right to remain silent he may still have found himself under arrest. However, the driver who remains silent won’t have his incriminating words used against him in a court of law.